A. The Messrs. Forbes, of Boston.

Mr. Webster announced that the testimony on the part of the government was closed on this issue.

The Court inquired if the claimants wished to examine any witnesses.

Mr. Evarts said he did not; for, as he understood, the Court held that this issue was immaterial.

THE DISTRICT ATTORNEY. We will see what his Honor decides. We have a motion of a legal character to make now, and some authorities to adduce.

MOTION TO STRIKE OUT THE CLAIM.

MR. WEBSTER. Your Honor will remember that the testimony which has been taken yesterday and to-day is under the exceptions to the claim which have been filed by the District Attorney, and we now present to your Honor the point that it is in proof here that the claimants upon the record have not an interest in the thing sufficient to entitle them to assume the character in which they appear in Court. The first authority I cite is Conkling's Treatise, 4th ed., p. 544, and The United States v. 422 Casks of Wine, 1 Pet. R. 547.

COURT. To what point?

MR. WEBSTER. Objections to the claim. I read from Conkling:

"If the interest in the res set up by the claimants be insufficient to entitle him to assume that character; or if he refuse or omit to make the required affidavit in support of his claim, it is subject to preliminary objection, and will be rejected on these grounds. The United States v. Four Hundred and Twenty-Two Casks of Wine, 1 Peters, 547. So, if the claim be made through the intervention of an agent, if there is ground for suspicion, he may be required to produce and prove his authority, before he can be admitted to put in the claim. If this is not done, it furnishes matter of exception, and may be insisted upon by the adverse party for the dismissal of the claim.' Ib. Objections of this nature may properly be made orally at the time of the presentation of the claim."

Upon the evidence now before the Court, it is perfectly apparent that the claim in this case does not represent a sufficient proprietary interest in the Meteor to justify the persons who appear as claimants to interpose an objection to the forfeiture of this ship, so far as concerns the whole property in the ship, and that the claim is of such a character, that upon the testimony which is now

before your Honor, and upon the decisions of the Supreme Court, and the rules of practice of the Court, as it stands, it must be stricken out; at least, must be stricken out so far as parties are concerned other than R. B. and J. M. Forbes. That is the motion we have to make now, that this claim, upon the issue we have been trying yesterday and to-day, be stricken out. I also cite another authority: Benedict's Adm. p. 344, rule 26, and Betts' Adm. Pr. p. 55, and App. p. 20.

Mr. Evarts did not think it important to discuss this question. On an examination of the pleadings, the Court had held that no issue was raised at all material. The proof had been taken on an immaterial issue, and the quality of the proof could not change the value of the issue. The traverse made by the government did not question the ownership of the claimants, but only added that they were not sole owners; and the proof given did not displace the ownership of these claimants (Messrs. Forbes), but showed that they were the exclusive and unqualified owners, and were the only persons having a standing in a court of admiralty, as claimants of a proprietory interest, to give them a footing as litigants here. Other parties had contributed money, but with the understanding and agreement that the legal title, ownership, possession, and control and registration, were to be in the hands of the Messrs. Forbes; and that the interest of these contributors was confined to what the law gives a resulting trustee, in consequence of the contribution of money. A court of admiralty does not recognize the right of mortgagees to claim where the proceedings are against the res.

Counsel cited Scudder v. The Calais Steamboat Co. 10 Law Reporter, N. S. p. 498; Weston v. Penniman, 1 Mason, p. 306, to the point that "legal title in a registered ship may, consistently with the acts, exist in one person, and the equitable title in another; and the disclosure of such equitable title is not required by the acts, unless one party be an alien."

The District Attorney replied: The issue was, whether these claimants were sole owners or not. It was a question of substance. After calling these various owners and hearing their evidence, counsel was driven to the necessity of trying to escape by saying they are not registered owners. The learned District Attorney made an argument of some length to show that the fact of these gentlemen not being registered did not affect their standing as

legal, actual part owners, or tenants in common of the vessel, who should appear. He cited the act of July 29, 1850, 9 Stat. at Large, p. 441, § 5, to show that the register should set forth all the owners, and the part or proportion of any vessel belonging to each owner. The object of a register of a vessel was to tell the truth, and not to tell a falsehood; and instead of parties being able to escape by registering their vessel falsely, they forfeited her. If Messrs. Aspinwall, Low, and Jerome had been on the register, and the Messrs. Forbes had been off, how would that have changed the title? Could any one have said that these three gentlemen, under the state of facts presented by the evidence, were the sole owners, that they had the legal title? Here were some eight or ten other gentlemen, whose title was as perfect and complete, for every purpose, except the management of the vessel, as that of the Messrs. Forbes. Suppose all these parties contributing their money had put the whole management and control of the vessel in Wm. F. Cary, telling him to charter or sell her and divide the proceeds, and they would pay him a commission; would that change the rule? Could it then be said that these claimants were the sole owners for any purpose in a substantial proceeding in admiralty? All these parties were tenants in common of the vessel, no one having more right over her than another, except that these two persons were appointed as agents.

Mr. Evarts stated, that as the registry law had been referred to since he had an opportunity of replying, he claimed the right to speak of it now; and as the prosecution were entitled to the last word, that could be had when he had finished what he had to say. Suppose, that instead of this legal title, by common consent of all equitable and beneficial interests, being lodged and evidenced in the Messrs. Forbes, that, in the course of this transaction, this ship had been divided by bills of sale, giving to each one of these gentlemen a legal title, and each of them had conveyed his share of ownership to the Messrs. Forbes, but each retaining his relation to profit and loss, and accountability to his creditors; that would be the case of a legal title lodged by beneficial owners in legal owners, who would then stand in the position of trustees, if not expressly, yet in the eye of the law. The creditor of such person had a right to seek his property, whatever its form. But the creditors of those holding the legal title, if the latter became insolvent, would have the right to the whole legal title for the satis

287

faction of their debts; and these beneficiaries must take their chance. The question was, whether, by the laws of admiralty procedure, the holders of the legal title of a ship, devolved upon them by those who might have had property in it, whether such persons should have the right to represent the ship as claimants? He claimed that they had the authority for such representation by common consent of the owners, by their conveyance of the titles; and they were true representatives, both in respect to any dealings with the ship, and to the defence in the case. The position that the equitable owners should have representation in the legal ownership in the claim could not be supported. Judge Story settled it that it was only the legal ownership which required to be represented by deciding, in Weston v. Penniman before cited, that under the Registry Act of 1792, c. 1, § 4, which required the register to contain the owners' names, equitable interests vested in citizens of the United States need not be disclosed. By the act of February 18, 1793, the same proceedings are to be had in enrolling as in registering vessels. The act of July 29, 1850, had changed the act of 1792 only so far as to require the particular parts owned by each person to be specified. The decision of Judge Curtis, Scudder v. The Calais Steamboat Co., ub. sup., was subsequent to the act of 1850, cited by the District Attorney. There was nothing in these acts preventing the legal and the equitable titles being in two distinct persons, or which required the disclosure of an equitable title, unless owned by an alien. The master of a vessel became a claimant in admiralty without having any title, simply because he held the possession and the control of the ship by the actual consent of the owners. It had been no fraud on the part of the Messrs. Forbes that the title of the vessel was in their hands.

The District Attorney had said they were tenants in common. Suppose himself and his learned friend contributed to the purchase of a house in Broadway, each a half, and took it in the name of a third party, they were not tenants in common. That third person was an owner in severalty, and holds it under the law.

Mr. Webster said that evidently the difficulty with his friend upon the other side was that this was a claim put in by an agent of agents, the position occupied by Mr. Cary, and as that gentleman was required to disclose his principals, so, upon the theory of the learned counsel, the two Messrs. Forbes would be required

to disclose who were theirs, for the whole argument upon the part of claimants was based upon the theory that the Messrs. Forbes were only the managing owners of the ship. It was a usual thing in admiralty and in business to have managing owners as distinguished from others. Suppose that the Messrs. Forbes did not choose to put in a claim for this ship, and his friend owned $35,000 in it, and says, "I don't choose to have my $35,000 condemned without a hearing," is he not to be permitted to put in a claim, or when he puts in one, shall the other side turn around and say that he hasn't an interest that justifies him in claiming? The counsel read from Judge Betts' Compend., p. 56.

"The claim must assert specifically the interest upon which the party intervenes.". It was not the legal interest dwelt upon by the counsel on the other side. There was not a line in books of admiralty practice which said that it must be a "legal ownership," but simply "interest." The counsel referred to the decision of Judge Curtis, and stated that therein the case was considered as one of legal trust. This was not such a case, but was only one of managing ownership, as distinguished from other owners. The act of 1850 was passed because Congress thought it for the interests of the United States that every man who owned a portion of a vessel should appear to be an owner of the ship, so that it might appear who were the owners of the ship. On the theory of the counsel on the other side, nine foreigners might have owned this vessel with the two Messrs. Forbes, and the register be a proper one. The government takes issue upon allegation of interest. The counsel, in conclusion, desired that the owners be made parties to the record, and more, that they should make personal affidavit to the answer filed here, so that when they came to try the case upon the merits, the proceedings might be regular and in accordance with the practice of admiralty courts.

The Court stated that evidently the point raised was one of technicality as to the mode of trying the question, and the accuracy of the pleadings, to remedy which the common way would have been to have amended them originally. The question of the ship's culpability arose, in the case, from alleged violation of the Neutrality Act. The Court did not see the consequence of objecting to the answers put in, because all the interests of the ship were not represented. The neglect of the parties owning the vessel was detrimental to themselves alone, and not to the government. If they failed to